John Roberts recasts his legacy

Chief Justice John Roberts promised not to pitch or bat, but he sure threw a curve ball Thursday.

By voting to uphold President Barack Obama’s health care law, Roberts shocked conservatives who thought they could rely on him to help sink Obama’s signature legislative accomplishment.

Story Continued Below

Instead, Roberts’s unexpected 59-page opinion will go down as his most significant, legacy-defining act since he joined the court in 2005 — and history ultimately could record it as the most consequential opinion of his tenure as chief justice.

His decision to side with the liberals on a 5-4 vote for the first time narrowly averted a replay of Bush v. Gore, which brought the president who nominated Roberts to power. That ruling, which split along ideological lines, divided the nation and threatened the court’s reputation for hovering above partisan strife.

It was the court’s reputation as an impartial arbiter of the law that Roberts promised to protect during his confirmation hearings, pledging “to call balls and strikes and not to pitch or bat.” And on Thursday, the decision Roberts authored assured that no one could accuse his court of taking a politically partisan stance on Obama’s most sweeping achievement.

“The ruling is institutionally courageous since it allows the court to stay clear of undermining the majority as expressed in Congress and therefore does not repeat the error of Bush v. Gore,” wrote Pepperdine University law professor Douglas Kmiec, a rare conservative supporter of Obama in 2008 who served as his ambassador to Malta.

This was Roberts’s moment to leave his imprint on the court, and he seized that moment. His action did not simply cross ideological lines: Roberts appointed himself the architect of the majority opinion holding that the landmark health care law could be justified as an exercise of Congress’s power to tax.

“This case marks the birth of the Roberts court,” said Adam Winkler, a UCLA law school professor. “For years, the court has been thought to be Anthony Kennedy’s court because Kennedy is the swing vote. Today’s decision shows that this is truly John Roberts’s court.”

Roberts’s opinion “avoided a cascade of criticism of the court for judicial activism,” Winkler said. “Roberts peered over the abyss and decided he didn’t want to go there.”

By contrast, many conservative legal thinkers felt betrayed. The specter of former Justice David Souter — appointed by the first President Bush — still haunts conservatives. The jurist described as a “home run” for their cause instead enraged them.

There were few signs Thursday that Roberts, who has a solidly conservative voting record, had triggered Souter-like remorse on the right. Still, the anger over the chief justice’s dalliance with the left was palpable.

“You give people slack for a one-off mistake when it’s minor stuff,” Chapman University law professor John Eastman said. “When it is the game and you’re within the 2-minute warning and you do a one-off by handing the ball to the other side, you don’t recover.”